Glenn Alden Harrison, M.D., DAB No. 3023 (2020)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Petitioner Glenn Alden Harrison, M.D., appeals the March 27, 2020 decision of an administrative law judge (ALJ), Glenn Alden Harrison, M.D.,DAB CR5571 (ALJ Decision).  The ALJ upheld, on summary judgment, a determination by the Centers for Medicare & Medicaid Services (CMS) to revoke Petitioner’s enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(1) based on the suspension of Petitioner’s Illinois medical license.  We affirm the ALJ Decision.     

Legal background

To receive Medicare payments, a physician or other “supplier” of Medicare-covered services must be enrolled in the Medicare program.  Social Security Act (Act) § 1861(d) (A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services under [Title XVIII].”); 42 C.F.R. §§ 400.202 (defining “Supplier”), 424.505.We apply the regulations in 42 C.F.R. Part 424 that were in effect when the CMS contractor issued the initial revocation determination.  See Meindert Niemeyer, M.D., DAB No. 2865, at 2 n.2 (2018) (citing John P. McDonough III, Ph.D., et al., DAB No. 2728, at 2 n.1 (2016)).  Enrollment confers on a supplier “billing privileges,” i.e., the right to claim and receive Medicare payment for health care services provided to program beneficiaries.  42 C.F.R. §§ 424.502 (defining “Enroll/Enrollment”), 424.505.  

CMS, which administers the Medicare program, regulates the enrollment of suppliers into the program and delegates certain program functions to private contractors.  Act §§ 1816, 1842, 1874A; 42 C.F.R. § 421.5(b).  CMS “may” revoke a supplier’s enrollment and billing privileges for any of the “reasons” enumerated in 42 C.F.R. § 424.535(a).  One such “reason” is that the “supplier is determined to not be in compliance with the enrollment requirements described in this subpart P” and “has not submitted a plan of corrective action as outlined in part 488 of this chapter.”  42 C.F.R. § 424.535(a)(1).  The

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subpart P “enrollment requirements” to which section 424.535(a)(1) refers include those in section 424.516, which mandates “[c]ompliance with Federal and State licensure, certification, and regulatory requirements, as required, based on the type of services or supplies the . . . supplier type will furnish and bill Medicare.”  Id. § 424.516(a)(2). 

Revocation effectively terminates any provider agreement and bars the supplier from participating in Medicare from the effective date of the revocation until the end of the re-enrollment bar.  42 C.F.R. § 424.535(b), (c).  CMS may impose a re-enrollment bar to be in effect between one year and three years, depending on the severity of the basis for revocation.  Id. § 424.535(c).Section 424.535(c) was revised effective November 4, 2019.  See 84 Fed. Reg. 47,794, 47,855 (Sept. 10, 2019).  Revocation based on the suspension of a license takes effect on the date of the suspension of the license.  Id. § 424.535(g).

A supplier may seek reconsideration of an initial (or revised initial) determination to revoke.  42 C.F.R.§§ 498.3(b)(17), 498.5(l)(1), 498.22(a).  If dissatisfied with the reconsidered determination, the supplier may request a hearing before an administrative law judge.  Id. §§ 498.5(l)(2), 498.40. 

Case background

Petitioner is a physician whose Illinois medical license was suspended from July 1, 2016 through July 26, 2016.  CMS Ex. 2, at 2; P. Ex. 1, at 2.       

By notice dated January 24, 2017, National Government Services (NGS), a CMS Medicare administrative contractor, informed Petitioner that his Medicare enrollment and billing privileges were revoked effective July 1, 2016 because his Illinois medical license was “suspended from 7/1/16 to 7/26/16.”  CMS Ex. 1, at 1 (citing 42 C.F.R. § 424.535(a)(1)).  NGS imposed a three-year re-enrollment bar to begin 30 days from the date of postmark of its notice.  Id. at 2 (citing 42 C.F.R. § 424.535(c)).  NGS informed Petitioner that if he believed he could correct the deficiencies, he may submit a corrective action plan (CAP)A supplier may submit a CAP where, as here, billing privileges were revoked under 42 C.F.R. § 424.535(a)(1).  See 42 C.F.R. § 405.809(a)(1); 79 Fed. Reg. 72,500, 72,530-31 (Dec. 5, 2014); Angela R. Styles, M.D., DAB No. 2882, at 2 n.3 (2018). that includes “evidence that [he is] in compliance with Medicare requirements” within 30 days of the postmark date of the notice (id. at 1); or, if he believed the determination was not correct, he could request reconsideration within 60 days of the postmark date of the notice (id. at 2). 

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By letter dated March 17, 2017, NGS informed Petitioner that it had rejected Petitioner’s CAP and that his enrollment and billing privileges were revoked effective July 1, 2016.  CMS Ex. 3, at 1-2.  NGS stated, as it had earlier in its January 24, 2017 notice, that Petitioner was “not appropriately licensed” due to the suspension of his medical license.  Id. at 1; CMS Ex. 1, at 1.  NGS included a notice of right to request a hearing before an ALJ.  CMS Ex. 3, at 2.

Upon receipt of NGS’s March 17, 2017 letter, Petitioner apparently filed both a request for NGS reconsideration and a request for hearing before an ALJ challenging NGS’s rejection of his CAP.  Among the exhibits in the record of the ALJ proceedings in this case is a June 7, 2017 ALJ order dismissing, on CMS’s motion,CMS states that NGS’s error in including in its March 17, 2017 letter a notice of right to appeal “led to a premature hearing request, which was dismissed.”  CMS’s response brief to the Board at 3 n.2. Petitioner’s request for hearing on the ground that Petitioner did not have a right to ALJ review of the rejection of a CAP.  P. Ex. 6 (ALJ’s June 7, 2017 Dismissal in Civil Remedies Division docket number C-17-593, citing 42 C.F.R. § 498.70(b)).The ALJ wrote, “Petitioner also advised me that it he is now satisfied that CMS is aware of Petitioner’s pending reconsideration request and that a right to hearing will be triggered if that determination is not fully favorable to him.  Petitioner agrees that there is no right to review by an administrative law judge of a denial of a CAP and further agrees that dismissal of this case is appropriate.”  P. Ex. 6, at 1.  The ALJ notified Petitioner of his right to ask the ALJ to vacate his dismissal under 42 C.F.R. § 498.72, and to request Board review of the dismissal under 42 C.F.R. §§ 498.80 and 498.82(a).  Id.  Petitioner evidently waited for a reconsidered determination to be issued, which, as discussed herein, was issued July 27, 2017, and was not favorable, and then filed a request for hearing.  The appeal was then assigned to the ALJ who issued the decision now before us.  

On July 27, 2017, NGS issued a reconsidered determination, again informing Petitioner that his enrollment and billing privileges were revoked effective July 1, 2016, based on the suspension of his medical license.  CMS Ex. 4, at 1.  Petitioner then filed a request for hearing, docketed under Civil Remedies Division number C-17-994.    

The parties filed cross-motions for summary judgment.  In a decision issued March 27, 2020, the ALJ found that the undisputed facts established the suspension of Petitioner’s medical license, “putting [Petitioner] out of compliance with Medicare enrollment requirements” and, accordingly, determined that CMS established a lawful basis for

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revocation under section 424.535(a)(1).In its July 2017 determination, NGS also stated Petitioner had filed claims for services provided to Medicare patients during the suspension period.  CMS Ex. 4, at 2.  The ALJ noted, however, NGS did not point to any evidence of bills for services rendered during that period.  ALJ Decision at 2 & n.1.  On this, we observe that NGS did not state that alleged errant billing during the suspension period put Petitioner out of compliance with enrollment requirements for purposes of revocation under section 424.535(a)(1).  We agree with the ALJ’s reading of the reconsidered determination; that is, NGS revoked under section 424.535(a)(1) based only on the license suspension.  Id. at 2 n.1 (“CMS has carefully limited the basis for the revocation to Petitioner’s license suspension, which, by itself, is sufficient to justify the revocation.”).  “[T]he Board is limited to reviewing the basis for revocation articulated in the unfavorable reconsidered determination.”  Vijendra Dave, M.D., DAB No. 2672, at 8 n.10 (2016); accord Styles, DAB No. 2882, at 9 (reconsidered determination “triggers a supplier’s right to appeal a revocation” and the ALJ “may look only to the reasons stated in” that determination).  ALJ Decision at 2-3 (emphasis removed).  The ALJ granted summary judgment for CMS; she denied Petitioner’s motion for summary judgment.  Id. at 2, 3.

As the ALJ noted, among the requirements a supplier must meet is the requirement to comply with licensure requirements for his supplier type.  Id. at 3 (citing 42 C.F.R. §§ 424.516(a)(2), 410.20(b)).  The ALJ stated that, because the undisputed evidence established that “the Illinois Department of Financial and Professional Regulation, which regulates physician licensing, suspended [Petitioner’s] medical license from July 1 through July 26, 2016” for failure “to file and/or pay his state income taxes,” CMS had the authority to revoke Petitioner’s billing privileges under 42 C.F.R. § 424.535(a)(1).  Id. (citing CMS Ex. 2, at 2; P. Ex. 1, at 2).  “[I]f a physician is unable to practice medicine for any length of time due to a disciplinary action against him,” the ALJ stated, the physician “is noncompliant with Medicare requirements, and CMS has the authority to revoke his billing privileges.”  Id. (citing Styles, DAB No. 2882, at 6-7; Niemeyer, DAB No. 2865, at 9; Akram A. Ismail, M.D., DAB No. 2429, at 8 (2011)).  Citing 42 C.F.R. § 424.535(g), the ALJ also stated that the effective date of revocation must be July 1, 2016, the date of suspension of Petitioner’s license.  Id.  

Standard of review

“The standard of review on a disputed issue of law is whether the ALJ decision is erroneous.”  Guidelines - Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html.

Whether summary judgment is appropriate is a legal issue that we address de novo.  Patrick Brueggeman, D.P.M., DAB No. 2725, at 6 (2016) (citing Lebanon Nursing & Rehab. Ctr., DAB No. 1918, at 4 (2004)); Guidelines.  Summary judgment is appropriate if there is no genuine dispute of fact material to the result and the moving party is entitled

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to judgment as a matter of law.  See 1866ICPayday.com, L.L.C., DAB No. 2289, at 2 (2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)). 

Discussion

Petitioner did not dispute before the ALJ, and does not dispute before the Board, that the Illinois licensing body suspended his medical license effective July 1, 2016.  This central fact material to the question of whether the revocation under 42 C.F.R. § 424.535(a)(1) is lawful is established on evidence Petitioner himself submitted.  P. Ex. 1 (“Lookup Detail Review” results from the Illinois Department of Financial and Professional Regulation (IDFPR) online database).  And, in his brief in support of his motion for summary judgment (Br. SJM), on page 2, Petitioner acknowledged that, “[o]n or about July 1, 2016, [his] professional privileges were . . . suspended due to a delay in payment of [his] personal taxes to the State of Illinois.”  He now makes a similar statement on page 2 of his brief in support of his request for Board review (P. Br.).  Petitioner nevertheless urges us to reverse the ALJ’s decision, chiefly on the ground that the ALJ made a legal error in “ignor[ing]” what Petitioner refers to as “element (2)” of 42 C.F.R. § 424.535(a)(1), which addresses the submittal of a CAP.  He asserts that he did submit one.  P. Br. at 1-2.

As we explain below, we agree with the ALJ that the undisputed facts establish a basis for revocation under 42 C.F.R. § 424.535(a)(1) and accordingly affirm the ALJ’s decision granting summary judgment for CMS.  However, we have determined it is necessary to discuss the Board’s rationale in Ismail, Niemeyer and Styles on which the ALJ relied (see ALJ Decision at 3), because those decisions address an important issue raised here:  CMS’s authority to revoke billing privileges under section 424.535(a)(1) even if, as here, the license suspension was “temporary” and not in effect at the time of the revocation.  We also explain why we reject Petitioner’s argument, essentially, that the submission of a CAP itself precludes CMS’s authority to revoke, as meritless.

Section 424.535(a)(1) provides, in part, that CMS may revoke a supplier’s enrollment and billing privileges if the supplier “is determined to not be in compliance with the enrollment requirements described in this subpart P.”  Suppliers “must meet and maintain [subpart P] enrollment requirements to bill . . . the Medicare program . . . for Medicare covered services or supplies.”  42 C.F.R. § 424.500.  Also, as the ALJ noted on page 3 of her decision, 42 C.F.R. § 424.516(a)(2), a subpart P regulation, states that CMS “enrolls and maintains an active enrollment status for a . . . supplier” who “meets, and continues to meet, and CMS verifies that it meets, and continues to meet,” among other requirements, “[c]ompliance with Federal and State licensure, certification, and regulatory requirements, as required, based on the type of services and supplies the . . .

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supplier type will furnish and bill Medicare.”Among the items a prospective supplier must furnish to support an enrollment application are “[a]ll applicable Federal and State licenses, certifications” and “[d]ocumentation associated with regulatory and statutory requirements necessary to establish . . . eligibility to furnish Medicare covered items or services to beneficiaries in the Medicare program.”  42 C.F.R. § 424.510(d)(2)(iii).  The ALJ also looked to 42 C.F.R. § 410.20(b) (ALJ Decision at 3), which states, in part, that Medicare Part B pays for “[p]hysicians’ services” furnished by a “doctor of medicine,” “who is legally authorized to practice by the State in which he . . . performs the functions or actions, and who is acting within the scope of his . . . license.”  These regulations together require a doctor of medicine to continue to hold a license authorizing him to practice medicine in order to bill and receive Medicare payment for services furnished to Medicare beneficiaries. 

The Illinois Compiled Statutes, Ch. 225 (Professions, Occupations, and Business Operations), § 60/3 (Licensure requirement), states, in part, “No person shall practice medicine, or any of its branches, or treat human ailments without the use of drugs and without operative surgery, without a valid, active license to do so . . . .”The Illinois statutes are available at the Illinois General Assembly’s website, at https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1309&ChapterID=24.  The IDFPR, which “regulates physician licensing” in Illinois (ALJ Decision at 3), describes various types of “disciplinary actions” the IDFPR may take, to include “Suspension,” “Summary or Temporary Suspension,” and “Revocation.”  “Suspended licensees are prohibited from practice during the suspension term . . . .”See https://www.idfpr.com/licenselookup/discpline.asp.  The Illinois Administrative Code, which includes regulations relevant here, 68 Ill. Adm. Code, Part 1285, is also accessible through the IDFPR website, www.idfpr.com (under tab “About IDFPR”).  The Part 1285 provisions do not, however, define the term “suspension” (or a variation of this word), though they do include provisions governing “summary suspensions.”  See 68 Ill. Adm. Code § 1285.230.  The IDFPR website describes “Summary or Temporary Suspension” as a disciplinary action it could take where “a licensee’s continuation in practice poses an imminent danger to the public.”  Id.  “Summarily or temporarily suspended licensees are prohibited from practice immediately upon being served by the [IDFPR].”  See https://www.idfpr.com/licenselookup/discpline.asp.

It is undisputed that, effective July 1, 2016, the IDFPR “suspended” Petitioner’s medical license.  P. Ex. 1, at 2.  Once the suspension of the Illinois medical license took effect, Petitioner was not legally authorized to practice medicine (in Illinois).  Because Petitioner could not practice medicine (in Illinois) while his medical license was suspended, he was not compliant with the state licensure requirements established by the applicable Medicare enrollment regulations and thus was subject to revocation under 42 C.F.R. § 424.535(a)(1).  See 42 C.F.R. §§ 410.20(b),  424.516(a)(2); Ismail, DAB No. 2429, at 9 (“The ‘State licensure’ requirement in section 424.516(a)(2) must be read in a manner consistent with the regulatory and statutory provisions requiring that a physician

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be ‘legally authorized to practice’ medicine by the state in which he performs the actions.  Act § 1861(r); 42 C.F.R. § 410.20(b).”).

Petitioner has referred, multiple times, to the “temporary” nature of his 26-day suspension, which was lifted after he rectified the tax problem that precipitated the suspension, without delay.Petitioner also says the suspension was merely “technical.”  P. Br. at 3.  Petitioner’s characterization of the suspension aside, it is undisputed that his license was suspended and that Petitioner could not practice medicine in Illinois during the suspension period.  E.g., P. Br. at 3; Br. SJM at 2, 4, 5.  Petitioner emphasizes that, in July 2016, before the suspension was lifted, he notified NGS that the suspension was expected to be lifted, but NGS nevertheless proceeded with revocation.  P. Br. at 2; P. Ex. 2 (a July 20, 2016 letter to NGS, from an attorney representing the practice in which Petitioner was a physician, stating that Petitioner’s license was expected to “be reinstated to full active status” “shortly”).  Petitioner also points to a March 23, 2017 affidavit of V.B., a billing specialist at the aforementioned practice, who attested that, on July 29, 2016, she telephoned an NGS representative and reported that Petitioner’s license was “unsuspended,” and, when she asked the NGS representative whether Petitioner could “see Medicare patients,” she was told “there was no prohibition on [Petitioner] seeing patients.”  P. Ex. 3; P. Br. at 2.The ALJ noted that, in its July 2017 reconsidered determination, NGS stated that Petitioner did not report the suspension (CMS Ex. 4, at 2), but Petitioner asserted he timely reported it, pointing to his exhibits 2 and 3.  ALJ Decision at 2 n.1.  Section 424.516(d)(1)(ii) requires physicians and physician organizations to report any adverse legal action within 30 days.  It is evident that NGS learned of the suspension, though it appears NGS did not accept the written notice (P. Ex. 2), as NGS also stated that the reporting attorney “had not been officially designated for legal representation of” Petitioner.  CMS Ex. 4, at 2.  In any case, NGS did not cite 42 C.F.R. § 424.535(a)(9) (failure to comply with section 424.516(d)(1)(ii)) as a basis for revocation.  As the ALJ noted, NGS cited only 42 C.F.R. § 424.535(a)(1) as the basis for revocation.  See supra note 7.

Petitioner’s statements raise the issue of what bearing the asserted “temporary” nature of the suspension, which was not in effect when NGS decided to revoke, has on CMS’s authority to revoke under section 424.535(a)(1).  The fact that the suspension of the license was lifted after 26 days, undisputed as it is, is immaterial to the question of legality of the revocation.  It is the fact of the suspension that triggers CMS’s authority to revoke under section 424.535(a)(1).  See Ismail, DAB No. 2429, at 8 (citing Federal Register preamble language and stating, “CMS may determine a supplier is out of compliance with the Medicare enrollment requirements at any time”).  Thus, the Board stated, in Dr. Ismail’s case, the ALJ correctly looked to the “immediate effect” of the suspension of Dr. Ismail’s medical licenses “rather than the possibility that the

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suspension may be lifted at some point.”  Id.The Board also noted that, based on the legal dictionary definition of “suspension,” that is, “the temporary deprivation of a person’s powers or privileges, [especially] of office or profession,” a suspension is “inherently ‘temporary.’”  Ismail, DAB No. 2429, at 8 (emphasis in original).  The Board went on to state that the Secretary of the Department of Health and Human Services has indicated that license suspensions are “final” for purposes of the Medicare enrollment regulations irrespective of any right to appeal a sanction on a license or the pendency of an appeal of the sanction.  Id. at 10-11 (discussing Federal Register preamble language).  The Board also stated that it was “Dr. Ismail’s inability to practice medicine for any length of time due to the disciplinary actions imposed against him [that] triggered his noncompliance with the Medicare enrollment requirements and authorized revocation of his billing privileges.”  Id.  

The Board has also rejected the proposition that CMS’s authority under section 424.535(a)(1) is constrained so that CMS may revoke only if the evidence establishes that the supplier was not compliant with the enrollment requirements at the time of revocation.  See Niemeyer, DAB No. 2865, at 8.  The Board held, “CMS’s interpretation of its authority under 42 C.F.R. § 424.535(a)(1) to revoke for noncompliance that existed, regardless of whether the noncompliance continues to exist, is reasonable and consistent with CMS’s policy goals and the rulemaking history.”  Id. at 9 (discussing Federal Register preamble language; emphasis added).  The Board reasoned as follows:

If we accept [Dr. Niemeyer’s] interpretation, CMS would not have the authority to revoke a supplier under 42 C.F.R. § 424.535(a)(1) for any period of noncompliance (regardless of length or seriousness) that ends prior to the issuance of an initial determination.  The time constraint imposed on a CMS contractor to identify the noncompliance, develop a case, and issue an initial determination would undoubtedly lead to instances such as the current case where CMS would be barred from seeking revocation action under section 424.535(a)(1).  It would place an undue burden on the contractor, and disincentivize a supplier from reporting short-term license suspensions before the period of noncompliance ends. . . .  In effect, the regulation would be rendered unworkable in instances of short-term periods of noncompliance.  Given the absence of explicit language binding CMS’s authority to noncompliance at the time of the revocation action, CMS’s interpretation of the regulation is reasonable and aligns with the stated goal of protecting the Medicare Trust Funds and beneficiaries, including from suppliers that do not comply with the enrollment requirements for short-term periods. 

Id. (footnote omitted); see also Styles, DAB No. 2882, at 5-8 (timing of the reinstatement

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of a suspended license is immaterial to authority to revoke under section 424.535(a)(1)).Petitioner does not assert, based on V.B.’s affidavit, that he understood the July 29, 2016 telephone exchange between V.B. and the NGS representative as a determination that NGS had decided not to proceed with revocation.  Certainly, V.B. did not attest that she was told by the NGS representative that NGS would not revoke based on the verbal report that Petitioner’s license was “unsuspended.”  In any case, in January 2017, NGS decided to revoke based on the suspension, however brief, and with the knowledge that the suspension had been lifted.    

Once the suspension took effect, CMS had authority to revoke Petitioner’s enrollment and billing privileges under section 424.535(a)(1).  Exercising its discretion, CMS (acting through its contractor) chose to revoke under that regulation.  42 C.F.R. § 424.535(a) (CMS “may” revoke for any of the “reasons” given under paragraph (a)).  Once CMS decides to revoke, the question before the ALJ and the Board is whether the basis for revocation is established.  If it is established, as it is here, we must uphold the revocation.  See Letantia Bussell, M.D., DAB No. 2196, at 13 (2008) (The issue on appeal is whether CMS has established a “legal basis for its actions.”); accord Stanley Beekman, D.P.M., DAB No. 2650, at 10 (2015) (The ALJ and the Board must uphold revocation if the regulatory requirements for revocation are met.); Abdul Razzaque Ahmed, M.D., DAB No. 2261, at 19 (2009) (CMS is “legally entitled to revoke” if the regulatory elements are met.), aff’d, Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).

We now turn to Petitioner’s arguments about his CAP.  Before the ALJ, Petitioner acknowledged that NGS rejected his CAP and that he had no right to appeal the rejection of a CAP.  Request for hearing at 2 (“[T]he instant appeal arises not from the CAP denial but from the denial of the reconsideration request.”).  He nevertheless expressed disagreement with NGS’s determination on the CAP.  ALJ Decision at 3 (“Petitioner . . . argues that he submitted a [CAP], which the contractor should have accepted.”).  The ALJ stated that she had “no authority to review the contractor’s rejection of a [CAP].”  Id. (citing cases).

Before the Board, Petitioner asserts the ALJ made a legal error in “fail[ing] to recognize” and “ignor[ing]” what Petitioner refers to as “element (2)” of section 424.535(a)(1), that is, the part of the regulation that refers to the submission of a CAP (“and has not submitted a plan of corrective action”).  P. Br. at 1-2, 3.  According to Petitioner, “the ALJ’s reasoning” that she had no authority to review the rejection of a CAP did not “obviate” the section 424.535(a)(1) requirement that, in order to revoke under this regulation, the supplier must have failed to submit a CAP.  Id. at 3.  Petitioner maintains that he did submit a CAP and thus CMS did not have authority to revoke his billing privileges under section 424.535(a)(1).   

The ALJ correctly determined that a supplier does not have a right to appeal the refusal to reinstate billing privileges on the basis of a CAP.  See Styles at 9 (citing Conchita Jackson, M.D., DAB No. 2495, at 6-8 (2013) and stating that “CMS’s rejection of a CAP

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is not subject to review”); 42 C.F.R. § 405.809(b)(2) (the refusal to reinstate billing privileges based on a CAP “is not an initial determination under [42 C.F.R.] part 498”).  We do not look behind CMS’s or its contractor’s rejection of a CAP, substituting our judgment for that of CMS or its contractor.  We confine our discussion below to examining that part of section 424.535(a)(1) which contemplates that a CAP be submitted in order to address Petitioner’s argument that the ALJ Decision is legally erroneous because it did not address that part of section 424.535(a)(1).   

Petitioner evidently responded, without delay, to NGS’s January 24, 2017 notice of opportunity to submit a CAP within 30 days.  CMS Ex. 1, at 1; CMS Exs. 3, at 1, and 4, at 1 (NGS’s March 17, 2017 and July 27, 2017 notices acknowledging the receipt of a CAP on February 27, 2017).  But submitting a CAP, even if timely, does not abrogate the authority to proceed with revocation if CMS or its contractor chooses to do so because it determines that the response does not comport with section 424.535(a)(1)’s provision that the supplier submit a CAP “as outlined in part 488 of this chapter.”  In its January 24, 2017 revocation notice, NGS informed Petitioner that any CAP he submits “should provide evidence that [he is] in compliance with Medicare requirements.”  CMS Ex. 1, at 1.  This notice was consistent with section 488.28(a), which states in relevant part: 

If a . . . supplier is found to be deficient in one or more of the standards in the conditions of participation, conditions for coverage, or conditions for certification or requirements, it may participate in, or be covered under, the Medicare program only if the . . . supplier has submitted an acceptable plan of correction for achieving compliance within a reasonable period of time acceptable to CMS. 

42 C.F.R. § 488.28(a) (emphasis supplied).

Petitioner points to the July 20, 2016 attorney letter informing NGS that his license was expected to “be reinstated to full active status” “shortly.”  P. Br. at 2, 3; P. Ex. 2.  This letter, the receipt of which NGS acknowledged in its July 27, 2017 reconsidered determination (CMS Ex. 4, at 1), plainly did not evidence compliance with applicable licensure requirements.  Indeed, it is undisputed that, as of July 20, 2016, Petitioner’s license was still on suspended status, and thus the attorney could not represent at that time that Petitioner had achieved compliance.  To the extent the argument in reliance on the letter could be viewed as an assertion that NGS could have and should have viewed the letter as an acceptable CAP “for achieving compliance within a reasonable period of time” (42 C.F.R. § 488.28(a)), NGS was under no obligation to do so.  As explained, the authority to revoke was triggered once the suspension took effect.  Moreover, section 488.28(a) contemplates an element of discretion, inasmuch as it states that a CAP “for achieving compliance within a reasonable time period” is to be “acceptable to CMS.” 

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Petitioner also points to V.B.’s attestation that she called NGS on July 29, 2016 (three days after the last day of suspension) and told an NGS representative that Petitioner’s license was “unsuspended.”  P. Br. at 2, 3; P. Ex. 3.  Again, CMS had authority to proceed with revocation under section 424.535(a)(1) even if, as here, it is undisputed that the suspension was lifted before the issuance of the revocation notice.With respect to Petitioner’s arguments concerning his CAP, we understand Petitioner to be referring to V.B.’s July 29, 2016 oral notice, not V.B.’s affidavit itself, since V.B. executed her affidavit on March 23, 2017 (P. Ex. 3), after the date on which NGS stated it had received Petitioner’s CAP.  On V.B.’s oral notice, we know of no authority specifically requiring a CAP to be submitted in written form.  In any case, even assuming that telephoning a contractor as V.B. did here could be viewed as an offer of a CAP, V.B. stated that she reported Petitioner’s license was “unsuspended” and, on questioning, the NGS representative told her “there was no prohibition on [Petitioner] seeing patients.”  P. Ex. 3  ¶¶ 4-6.  V.B.’s affidavit is less than clear as to exactly what V.B. told the NGS representative and the basis for the NGS representative purportedly responding as V.B. stated.  V.B.’s report of the “unsuspended” license does not itself prove that IDFPR had in fact lifted the suspension.  In any case, CMS had authority to revoke in January 2017 based on the license suspension, however “temporary.”        

Conclusion

We affirm the ALJ Decision.